Punjab-Haryana High Court
Smt. Kavita vs Shiv Kumar on 31 August, 2010
Author: Rajesh Bindal
Bench: Rajesh Bindal
T.A. No. 342 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Transfer Application No. 342 of 2009 (O&M)
Date of Decision: 31.8.2010.
Smt. Kavita ....Applicant
Versus
Shiv Kumar
...Respondent
CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Ashwani Gaur, Advocate for the applicant.
Ms. Vandana Malhotra, Advocate for the respondent.
RAJESH BINDAL J Prayer in the present application is for transfer of divorce petition, titled as Shiv Kumar Vs. Smt. Kavita filed under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') by the respondent-husband from the Court of Addl. District Judge, Sonepat to the Court of competent jurisdiction at Panipat.
Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites at village Lakhu Buana, Tehsil Israna, District Panipat on 19.2.2007. One child was born out of the wedlock in January 2010. As the applicant was turned out of matrimonial home, she filed an application under Section 125 Cr.P.C. at Panipat in which interim maintenance has been fixed at ` 1,250/- per month, which is being paid by the respondent-husband. The applicant also filed a complaint under Section 498-A, 406 IPC in which challan has been presented and case is now fixed for prosecution evidence. The respondent filed a divorce petition at Sonepat. The submission is that it is difficult for the applicant to attend the hearings of the divorce petition filed by the respondent-husband at Sonepat, being a poor lady, who is living with infant child at the mercy of her parents with no source of income. No one is there in the family to accompany her to attend hearings of the case at Sonepat. It is the convenience of the wife which is to be seen. The applicant is residing at village Lakhu Buana in District Panipat. For T.A. No. 342 of 2009 2 coming to Sonepat Court, the applicant will have to first reach at Panipat to catch a bus for Sonepat and then take autorickshaw to the Court Complex at Sonepat which is located on Gohana Road, whereby she has to travel a distance of about 60 kms. Considering the aforesaid facts, the divorce petition filed by the husband at Sonepat be transferred to the Court of competent Jurisdiction at Panipat.
On the other hand learned counsel for the respondent opposed the prayer made by learned counsel for the applicant and submitted that the distance is equal from the village of the respondent-husband as that of the applicant-wife. At present, husband is in Assam, whereas the wife was studying in B.Ed at Gohana.
Heard learned counsel for the parties and perused the record. The issue regarding transfer of case from one Court to another has been considered by Courts in numerous judgments. In Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others, 2008 (3) SCC 659, the Hon'ble Supreme Court laid down certain parameters to be considered for the purpose, while opining that the same cannot be treated as exhaustive but illustrative in nature. The relevant Para-14 thereof is extracted hereunder:
"Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or T.A. No. 342 of 2009 3 other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceedings. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order."
The issue regarding transfer of matrimonial proceedings almost in similar circumstances came up for consideration before this Court as well in a number of cases earlier. It has been the consistent view that primarily the convenience of the wife is to be given weightage for ordering transfer of proceedings at or near the place where she is residing.
In Veena alias Arti v. Pawan Kumar, 1998(1) RCR (Civil) 558 (P&H) : 1998 (1) M.L.J. 316, the proceedings under Section 9 of the Act filed by the husband at Sultanpur Lodhi were ordered to be transferred to Amritsar by this Court. In Smt. Sonia v. Rajnish Kumar Arora, 1997 (2) RCR (Civil) 361 (P&H) :
1998 (1) M.L.J. 37, this Court ordered transfer of petition under Section 9 of the Act from Ludhiana to Amritsar. On yet another occasion in Suman v. Gopal, 2003 (4) RCR (Civil) 26, having regard to the observations of the Supreme Court in Sumita Singh v. Kumar Sanjay and another, A.I.R. 2002 SC 396 and Neelam Kanwar v. Devinder Singh Kanwar, 2001 (1) M.L.J. 509 (S.C.), this Court ordered the transfer of matrimonial proceedings from Gurgaon to Faridabad.
The relevant observations from Neelam Kanwar's case (supra) are extracted as under:-
"We are midful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reasons not to do so. No special reason is shown."
In Milli vs. Mukesh Kumar, 2005 (4) RCR (Civil) 422, a petition filed under Section 9 of the Act, for restitution of conjugal rights, was ordered to be T.A. No. 342 of 2009 4 transferred from Jagadhari to Amritsar on an application filed by the wife.
As is evident from the cases referred to above, the principle of law with regard to transfer of cases especially regarding matrimonial disputes is quite settled, where consistent opinion is that it is always the convenience of wife which has to be given due weightage for ordering the transfer of proceedings at or near the place where the wife is residing.
In the present case, the applicant-wife is residing at village Lakhu Buana, Tehsil Israna, District Panipat. Two cases filed by the applicant are pending at Panipat. The divorce petition was filed by the husband at Sonepat. It would certainly be difficult and in-convenient for the wife living with an infant child at the mercy of her parents, to attend hearing of the divorce petition at Sonepat. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition filed by the respondent which is pending in the Court of Additional District Judge, Sonepat titled as Shiv Kumar Vs. Smt. Kavita, deserves to be transferred to the Addl. District Judge(I), Panipat.
Ordered accordingly. Parties are directed to appear before Addl. District Judge(I), Panipat on 9.9.2010 for further proceedings. The Addl. District Judge(I), Panipat may either keep it with him or entrust the same to any other competent Court.
The application stands disposed of accordingly.
(RAJESH BINDAL) 31.8.2010. JUDGE Reema